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[2016] ZAWCHC 13
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Mohamed v Minister of Home Affairs and Others (A287/2015) [2016] ZAWCHC 13 (12 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: A287/2015
DATE:
12 FEBRUARY 2016
In
the matter between:
LIBAN
ABDI
MOHAMED
......................................................................................................
Appellant
And
THE
MINISTER OF HOME
AFFAIRS
.........................................................................
1
st
Respondent
THE
DIRECTOR GENERAL DEPARTMENT
OF
HOME
AFFAIRS
......................................................................................................
2
nd
Respondent
THE
DIRECTOR: REFUGEE RECEPTION
OFFICE,
DEPARTMENT OF HOME
AFFAIRS
........................................................
3
rd
Respondent
THE
CHIEF IMMIGRATION OFFICER, DEPARTMENT
OF
HOME
AFFAIRS
.......................................................................................................
4
th
Respondent
THE
REFUGEE STATUS DETERMINATION
OFFICER
........................................
5
th
Respondent
THE
CHAIRPERSON, THE STANDING
COMMITTEE
FOR REFUGEE
AFFAIRS
..................................................................
6
th
Respondent
JUDGMENT:
12 FEBRUARY 2016
ALLIE,
J:
1.
For the purpose of this judgment, the
Standing Committee of Refugee Affairs will hereinafter referred to as
[“SCRA”]
and the Refugee Status Determination Officer
will hereinafter be referred to as [“RSDO”].
2.
This is an appeal against the decision of
the court
a quo
which
found that the decision of the SCRA taken on 28 October 2011, namely,
that the appellant’s application for asylum is
manifestly
unfounded was a final decision and the SCRA was
functus
officio
at the time when the
appellant’s further submissions were sent to the SCRA.
3.
On behalf of appellant, it was submitted
that the court
a quo
was
incorrect in holding that the SCRA was prevented from having regard
to appellant’s further submissions merely because
it had
informed the RSDO of its decision because that decision had not been
communicated to the appellant and that while the RSDO
remains an
interested party because the SCRA automatically reviewed his
decision, he was not an affected person.
Relevant
Facts
4.
The appellant is a 25 year old Somali
national who submitted an application for asylum in terms of section
21 of the Refugees Affairs
Act at the Maitland Refugee Reception
Office.
5.
He speaks Somali and has a basic
understanding of Arabic but does not read, write nor speak English.
6.
He relied on the services of an interpreter
to communicate with the officials of the Department of Home Affairs.
7.
He was interviewed by the RSDO on 4 October
2011.
8.
On 5 October 2011 the RSDO rejected his
application for asylum as manifestly unfounded because the RSDO
believed he came to South
Africa to seek employment and not because
he was subjected to the threat of persecution or harm.
9.
When he was informed of the RSDO’s
decision he was handed a document informing him that he had 14 days
within which to make
further submissions before the decision would be
reviewed.
10.
At that’s stage his asylum seeker
permit was renewed and extended until 5 April 2012.
11.
On 27 March 2012, shortly before he was due
to return to the Refugee Reception office, he obtained legal advice
and written submissions
were made to the SCRA on his behalf.
12.
On 28 March 2012, his attorney received an
acknowledgment of receipt of the submissions from the SCRA.
13.
Appellant’s attorney sent several
emails to the SCRA thereafter requesting an update and response to
the submissions.
14.
On 4 February 2013, the Chairperson of the
SCRA responded by saying that the representations ought to have been
filed with the RSDO
and the SCRA would consider them even if
they were received outside of the 14 days stipulated, provided that
the SCRA has
not yet reviewed the decision of the RSDO.
15.
On 4 February 2013, the appellant was
informed that the SCRA had already reviewed the decision of the RSDO
on 28 October 2011 obviously,
without having regard to his
submissions which were only delivered on 27 March 2012, at a time
when he did not know that the SCRA
had already undertaken the review.
He was advised that the SCRA upheld the decision of the RDSO to
refuse his application for asylum.
The
Applicable Law
16.
The
intention of the
functus
officio
doctrine
is to mediate two competing interests, namely, “
finality
or certainty on the one hand and flexibility and administrative
efficiency on the other
.”
[1]
17.
In
Retail
Motor Industry Organisation & Another v Minister of Water &
Environmental Affairs& Another
,
Plasket AJA held that: “
Certainty
and fairness have to be balanced against the equally important
practical consideration that requires the re-assessment
of decisions
from time to time in order to achieve efficient and effective public
administration in the public interest.”
[2]
18.
In the Retail Motor Industry case (
supra
),
the Supreme Court of Appeal set out the applicability of four
jurisdictional facts to demonstrate how the balance between
certainty
and flexibility ought to be achieved:
“
first,
the principle applies only to final decisions; secondly, it usually
applies where rights or benefits have been granted-and
thus when it
would be unfair to deprive a person of an entitlement that has
already vested; thirdly, an administrative decision-
maker may vary
or revoke even such a decision if the empowering legislation
authorises him or her to do so (although such a decision
would be
subject to procedural fairness having been observed and any other
conditions) fourthly, the functus officio principle
does not apply to
the amendment or repeal of subordinate decision.
”
[3]
19.
The facts in this case require us to
consider two related factors, namely, when a decision is generally
regarded as final and the
decision maker as
functus
officio
and whether the
Refugees Act
130 of 1998
or its regulations contain any provision that obliges the
SCRA to deviate from the general principles applicable to the
doctrine.
20.
There is nothing prohibiting the
legislature or the executive from expressly departing from the
general rule that a decision maker
is only
functus
officio
once its decision has been
conveyed to the affected person.
21.
In the relevant Act and regulations, there
is however no express or implied attempt to depart from the general
rule.
22.
In
President
of the Republic of South Africa v SARFU & Others
,
[4]
the Constitutional Court held that the validity of the President’s
decision to delegate to the Minister, the decision to
appoint a
commission of inquiry had to be determined with reference to the fact
that until the notice of promulgation of the commission
of inquiry
had occurred, the President could alter his decision. Therefore the
external act of promulgation was considered to be
the formal
communication and the President was not
functus
officio
until
the promulgation.
23.
In
Member
of the Executive Council for Health, Eastern Cape Province v Kirland
Investments
,
[5]
the Superintendent-General
of the Eastern Cape Department of Health made a decision to refuse
Kirland’s application to set
up a private hospital but the
Superintendent-General was involved in an accident before he could
sign the letter of refusal.
24.
The
Supreme Court of Appeal, relying on the SARFU judgment, held that the
decision could be reversed by the acting Superintendent-
General
because the earlier decision had not yet been communicated to Kirland
and the Superintendent-General was not yet
functus
officio
because
the decision is revocable before it is published or announced or
otherwise conveyed to the affected person.
25.
In
Manok
Family Trust v Blue Horison Investment 10 (Pty) Ltd & Others,
[6]
the
Supreme Court of Appeal, applied the Kirland judgment when it held
that a decision taken under section11 (4) of the Resititution
of Land
Rights Act 22 of 1994 that a land claim failed to meet the
requirements of the Act, was final and the decision-maker was
functus
officio
because
the decision had been conveyed to the applicant who claimed
restitution.
26.
In English law, the position is similar.
Wade and Forsyth explains it as follows:
“
In
the absence of special circumstances the tribunal’s decision is
irrevocable as soon as it has been communicated to the
parties, even
though orally and even though the reasons for it remain to be given
later.
”
[7]
27.
In
Re: 56
Denton Road,
the same sentiment was
expressed as follows:
“
Where
Parliament confers on a body… the duty of deciding or
determining any question, the deciding or determining of which
affects the rights of the subject, such decision or determination
made and communicated in terms which are not expressly preliminary
or
provisional is final and conclusive, and cannot, in the absence of
express statutory power or the consent of the person or persons
affected, be altered or withdrawn by that body.
”
[8]
28.
In
three Australia cases, namely, Seminugus,
[9]
SZQOY
[10]
and SZRNY
[11]
the court held that the decision-maker is not
functus
officio
until the applicant has been informed of the decision.
29.
Even with due recognition of the
differences between the Australian legislation and ours, the general
principle enunciated in the
Australian cases, are equally applicable
in South Africa, namely, that the flexibility to alter a decision
remains until the decision
has been communicated to the affected
person.
30.
Daniel Pretorius says the following in
explanation of the
functus officio
doctrine
:
“
The
functus officio doctrine is one of the mechanisms by means of which
the law gives expression to the principle of finality. According
to
this doctrine, a person who is vested with adjudicative or decision
making powers may, as a general rule, exercise those powers
only once
in relation to the same matter.”
[12]
Application
of Law to the Facts
31.
In this case, the SCRA’s decision was
communicated to the RSDO for two purposes, namely, firstly, to inform
the RSDO as an
interested party so that he could have a record of the
decision and secondly, so that the RSDO could convey the outcome of
the
SCRA’s automatic review to the asylum seeker, namely, the
appellant.
32.
The purpose of informing the appellant is
clearly so that he knows that his temporary residence will terminate
without his application
for asylum being successful and so that he
can exhaust further appeal procedures.
33.
The far- reaching consequences that flow
from a refusal of an asylum application, is sufficient justification
for ensuring that
an applicant is informed as soon as possible of the
SCRA’s decision.
34.
It is however disconcerting that in this
case the SCRA took its decision on 28 October 2011 and conveyed it to
the RSDO immediately
but the decision was only communicated to the
appellant on 4 February 2013 when he went to renew his asylum seeker
permit.
35.
The appellant renewed his temporary permit
on 5 April 2012 at the Reception Office and no one informed him on
that day, that the
SCRA had upheld the RSDO’s decision.
36.
The policy adopted by the SCRA that they
will consider late submissions made before they make decisions
demonstrates an appreciation
of the need for flexibility although
that policy does not go far enough in giving expression to the
general principles applicable
to the
functus
officio
doctrine.
37.
The 10 month delay in informing the
appellant of the SCRA’s decision materially prejudiced his
prospects of success in challenging
the procedural regularity of the
decision in that the appellant could be deported as he is now
illegally residing in the country.
38.
Consequences, such as, summary deportation
or the likelihood of persons remaining in the country illegally,
themselves, ought to
be sufficient incentive to make the respondent’s
process more transparent and accessible to asylum seekers at an
earlier
stage.
39.
It is common cause that the practice
prevailing at the time when the SCRA made its decision, was, that its
members would arrive
at the Refugee Reception Office, review the
files, make the relevant decisions and leave the files at the office.
The RSDOs are
oblige to inform the applicants of the SCRA’s
decision. The SCRA is not advised about when an applicant will be
informed.
40.
The stated purpose of the
Refugees Act is
to give effect to the relevant legal instruments, principles and
standards for refugees and asylum seekers, to regulate applications
for and recognition of refugee status and to provide for rights
and obligations flowing from such status.
41.
Section 2 of the Act provides that no one
may be returned to another country where that person will be
subjected to persecution
due to his or her race, religion,
nationality, political opinion or membership of a social group or if
his or her life, physical
safety or freedom would be threatened.
42.
Section 2 is meant to give expression to
this country’s obligation of non-refoulement under article 1A
(2) of the Convention
Relating to the Status of Refugees, 1951.
43.
Section 25 (3) (a) and (b) defines the
SCRA’s functions as follows:
(a)
May confirm or set aside a decision made in
terms of section 24 (3) (b) and
(b)
Must decide on a question of law referred
to it in terms of section 24 (3) (d).
44.
Before arriving at its decision, the SCRA
may use its inquisitorial and investigative powers under section 25
(1). This gives the
SCRA power to go beyond the mere “record”
of the decision of the RSDO.
45.
In
Bula
v Minister of Home Affairs,
[13]
the court said that the automatic review by the SCRA “
was
clearly intended to ensure that deserving applicants are not
wrongfully turned away. This in turn ensures that South Africa
meets
its international obligations.
”
46.
Section
25 (4) provides that; “
The
Standing Committee must inform the Refugee Status Determination
Officer concerned of its decision in the prescribed manner and
within
the prescribed time.”
The
Act clearly does not require the SCRA to inform the applicant of its
decision. In practice it is the RSDO who informs the applicant,
usually when he or she comes into the Refugee Reception Office to
renew the temporary residence permit.
47.
There are obvious practical difficulties
that are sought to be obviated by adopting this procedure as very
often, refugees or asylum
seekers may not have fixed addresses.
48.
While the practice is explicable in view of
the high volume of applications for asylum that the RSDOs and SCRAs
receive, no cogent
reasons were advanced for the SCRA not being given
the further submissions after it reviewed the RSDO’s decision
but before
its decision was communicated to the appellant.
49.
The court
a
quo
appears to have seized upon the
words ‘
in the prescribed manner
and within the prescribed time
”
in order to arrive at the conclusion in para 24 of its judgment that
those words prove that the legislature envisaged that
the decision
had to be taken within the time frame that it had to be communicated
to the RSDO and therefore the SCRA was found
to be
functus
officio.
50.
The fallacy in that conclusion is that a
prescribed time period or manner in itself does not make a decision
final.
51.
I find myself in agreement with the
appellant’s counsel when he says that the practice of the SCRA
is irrelevant to interpreting
the Act; it doesn’t impede
considering late representations and practical considerations can’t
outweigh substantive
principles.
52.
The interpretation of a statute cannot
yield to administrative practice and convenience.
53.
Appellant alleged that the RSDO and
consequently the SCRA were given an incorrectly interpreted account
of what he conveyed to the
interpreter, as his reason for coming to
this country and he accordingly wants the SCRA to have regard to his
late written submissions
which, if considered, ought to at least
persuade the SCRA to decide if it should conduct further inquiries
and investigations before
making its decision.
54.
On behalf of the appellant, it was
submitted that the SCRA was entitled to adhere to its policy that
written submissions be made
within 14 days. Mr Bishop for
appellant argued that this policy could not be inflexibly applied.
55.
He acknowledged that in certain
circumstances the SCRA may refuse to consider late submissions if the
explanation for the lateness
was not satisfactory.
56.
On behalf of appellant it was argued that
the SCRA would have to consider the late submissions, even if it is
merely for the purpose
of condoning its lateness.
57.
Having found that the general principle
applicable to the
functus officio
doctrine, applies in this case, namely, that the decision of the SCRA
had to be communicated to the appellant as the affected party
for the
SCRA to be
functus officio
,
the RSDO’s failure to inform the appellant before his late
written submissions were delivered, has the effect of making
the SCRA
not
functus officio
on 28 March 2012 when it received the late further submissions.
58.
I would accordingly remit the application
for asylum back to the SCRA for reconsideration with due regard being
had to the late
written submissions filed by appellant on 27 March
2012, albeit for the initial purpose of deciding whether an inquiry
or investigation
was justified in the circumstances.
Costs
59.
Since the appellant has been successful in
the appeal, costs should follow the result both in the appeal and in
the court
a quo.
IT
IS ORDERED THAT
:
1.
The order of the court
a
quo
is set aside;
2.
The decision of the Standing Committee of
Refugee Affairs communicated to Appellant on 4 February 2013, is set
aside;
3.
The appellant’s application for
asylum is remitted back to the Standing Committee of Refugee Affairs
for reconsideration;
4.
The costs order of the court
a
quo
is set aside;
5.
The Respondents are directed to jointly and
severally pay the Appellant’s costs in the court
a
quo
and in the appeal.
R.
ALLIE
VELDHUIZEN,
J:
I
agree.
A.
VELDHUIZEN
ROGERS,
J:
I
agree.
O.
ROGERS
ALLIE,
J [VELDHUIZEN, J et ROGERS, J agree)
- 12/02/2016
The
order of the court
a quo
is set aside;
The
decision of the Standing Committee of Refugee Affairs communicated to
Appellant on 4 February 2013, is set aside;
The
appellant’s application for asylum is remitted back to the
Standing Committee of Refugee Affairs for reconsideration;
The
costs order of the court
a quo
is
set aside;
The
Respondents are directed to jointly and severally pay the Appellant’s
costs in the court
a quo
and
in the appeal.
[1]
“
Administrative
Justice-LAWSA Vol 2 sn18 by JA D’Oliviera. Administrative Law
in S.A. (2ed) (2102) at 278 by C.Hoexter
[2]
2014
(3) SA251 (SCA) at para 24
[3]
At
para 25
[4]
2000
(1) SA1 (CC) at para 44
[5]
2014
(3) SA 219
(SCA) at para 15
[6]
2014
(5) SA 503
(SCA) at para 14
[7]
Administrative
Law by Wade and Forsyth at 192
[8]
[1953]
Ch 51
at 56
[9]
Seminugus
v Minister for Immigration & Multicultural Affairs [2000] FCA
240
[10]
Minister
for Immigration and citizenship v SZQOY [2012] FCAFC 13
[11]
Minister
for Immigration, Multicultural Affairs and Citizenship v SZRNY
[2013] FCAFC 104
[12]
“
The
Origin of the
functus
officio
doctrine with specific reference to its application in
Administrative Law” 2005 SALJ vol
122 PAGE 832
at
832-833
[13]
2012(4)
SA 560 (SCA) at para 68